On May 16, 2019, FCC Commissioner Michael O’Rielly gave a speech at the ACA International Washington Insights Conference in Washington, DC, which gave a potential preview of how the Commission may shape the TCPA landscape in the near future. Commissioner O’Rielly’s full speech is available here. He gave his thoughts on a number of subjects and some of the highlights are below.

As to the TCPA’s definition of “automatic telephone dialing system” (ATDS or more commonly known as “autodialer”) litigation post-ACA Int’l v. FCC, 885 F.3d 687 (D.C. Cir. 2018), the Commissioner correctly noted that the “‘fog of uncertainty’ . . . remains thicker than ever,” with numerous courts struggling to interpret the TCPA and issuing conflicting decisions. He characterized some decisions as “illogically [finding] the FCC’s 2003 and 2008 orders defining an ATDS to be controlling post-ACA.” And, he went on to remark that:

[T]hat just pales in comparison to the medley of courts that have chosen to ignore the DC Circuit [in ACA Int’l] and instead follow the 9th Circuit’s extremely misguided and breathtakingly expansive definition of ATDS [in Marks v. Crunch San Diego, LLC, 904 F.3d 1041 (9th Cir. 2018)] as a device that stores numbers to be called, irrespective of whether they have been generated by a random or sequential number generator.

It doesn’t seem like Commissioner O’Rielly is a big fan of the Marks decision. Few are aside from our brethren in the plaintiffs’ bar. Will we see some clarity from the FCC on the autodialer definition in the near future? Let’s hope so.

Commissioner O’Rielly also offered his thoughts on the various ongoing rulemakings and petitions for declaratory rulings currently pending at the FCC. In short, he stated that the he is “convinced of the need to act” and the Commission has “an obligation to resolve many of the worthy TCPA petitions that are currently pending.” Referring to petitions relating to, among other things, (1) whether motor vehicle safety-related recall notices fall under the TCPA’s emergency exception, (2) what constitutes an “advertisement,” (3) whether faxes sent as email fall within the Junk Fax Prevention Act, and (4) whether calls utilizing soundboard technology constitute the use of “an artificial or prerecorded voice to deliver a message” as contemplated by the statute, Commissioner O’Rielly stated that, “[i]f implementing the DC Circuit’s directives in ACA International takes much longer, the Commission should at least act swiftly to provide some relief in these discrete instances.”

Finally, Commissioner O’Rielly drove home the point that “‘robocall’ [whatever that is] is not a bad word. There are good and legal robocalls, and there are scam and illegal robocalls, and it’s the latter that are wreaking havoc on the nation’s communications networks.” Unwanted calls are not necessarily unlawful calls. And he rebutted “a certain misleading narrative” offered up by the lobbying arm of the TCPA plaintiffs’ bar (which has profited to the tune of millions of dollars as the cy pres beneficiary in numerous TCPA class action settlements) “that the vast majority of robocalls in the US are perpetrated by US corporations.” That is “extremely misleading.”

At bottom, Commissioner O’Rielly noted that the FCC “need[s] to restore reasonableness and certainty” to the TCPA, “while focusing on the criminals and scam artists.” “[W]e must remain mindful not to catch legitimate organizations . . . in the crosshairs. The stakes are too great for businesses, consumers, and the rule of law.”

We couldn’t have said it any better ourselves. Stay tuned as we continue to follow notable TCPA developments.